Madras High Court
R.Indrani vs The Secretary on 30 September, 2021
W.P.No.30375 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
W.P.No.30375 of 2012
R.Indrani .. Petitioner
Vs.
The Secretary
Tamil Nadu Public Service Commission
Fraser Bridge Road
V.O.C Nagar
Chennai-600 003 .. Respondent
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the respondent ot hold a
fresh counselling session for the petitioner enabling her to express her
choice of a post included in the Combined Subordinate Services
Examination-I as a Open Competition or Open Competition (Woman)
candidate appropriate to her rank position: 770 mentioned in the
Counselling Schedule for 16.10.2012 authorised by the respondent-
TNPSC and pass consequential orders in accordance with law.
For Petitioner : Mr.M.Radhakrishnan
For Respondent : Mr.V.Govardhanan
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W.P.No.30375 of 2012
ORDER
Petitioner is a graduate in Microbiology, postgraduate in Microbial
Biotechnology and Master of Philosophy in Microbiology. She is a gold
medalist from Madurai Kamaraj University in her undergraduation. She
belongs to Backward Community.
2. In response to an advertisement issued by the respondent for
direct recruitment to the post included in Combined Subordinate Services
Examination-I, she submitted her application under Backward Class
category. She enclosed the Community certificate as proof of Backward
Class. She appeared for the written test on 30.07.2011 and was directed
to appear for certificate verification and oral test on 28.06.2012. After
verification of the certificate, she was permitted to participate in the oral
test. Considering her performance, she was directed to appear for
counselling session held on 16.10.2012 and her rank position was shown
as 770. When she was about to express her choice of posting, she was
abruptly sent out of the room on the pretext that she was wrongly called
by TNPSC for counselling and that she was not eligible for the post
included in the Combined Subordinate Services Examination-I. The
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W.P.No.30375 of 2012
respondent have obtained a letter from the petitioner that she had not
enclosed the Community certificate along with the application.
Immediately on 18.10.2012, she sent an email through her lawyer that
not permitting her to participate in the counselling session was unfair and
unreasonable. Aggrieved over non selection, she preferred the above writ
petition.
3. The respondent in counter affidavit would state that the
petitioner had scored 244.50 marks in written test and she was
summoned for oral test where she secured 30 marks out of 40. As per the
instructions to the candidate and as per office order dated 07.11.2006
O.O.No.70 dated 27.08.2009, the candidate has to be treated in the
category “Others” as she has not enclosed the Community certificate in
support of her claim as Backward Class. However, based on the order
passed by this Court in W.A.No.2265 of 2012 dated 12.03.2012, the
candidate was called for oral test subject to outcome of the review
petition. She could not be treated as open category also as she has not
paid the prescribed examination fee, therefore she cannot be appointed.
However, she was allowed to participate in the counselling conducted on
07.01.2013 for non oral test posts. The petitioner opted for the post of
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Assistant in Police Department during the said counselling.
4. Heard the submissions.
5. It is not in dispute that the petitioner possess basic educational
qualification to appear for the examination conducted for Combined
Subordinate Services Examination-I. According to the petitioner she has
enclosed the Community certificate as proof along with the application
but she has not shaded the OMR sheet for which mistake she was sent
out of the counselling room. The fact remains that she has secured 244.50
marks in the written test and 30 out of 40 marks in the oral test and thus
ranked at 770 th position. The respondent also did not deny that she had
produced the Community certificate at the time of certificate verification.
It is obvious that only after verifying the Community certificate she
should have been permitted for participating in the oral test. Further, as
per her ranking she was entitled to get selection in the Open category
also. It is also not in dispute that there are various categories like
Backward Class, Backward Class (woman),Woman Category and Open
category. From the factual submissions made by both the parties, it is
very clear that the petitioner is entitled to get appointment on her own
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W.P.No.30375 of 2012
merits in any one of the categories.
6. The Tamilnadu Public Service Commission has taken a dual
stand one that the petitioner has not enclosed the Community certificate
and therefore she could not be considered as a Backward class candidate.
The other stand that she has not paid the examination fee, for, for
Backward class candidates, examination fee is waived and therefore, she
cannot be considered in the Open Category (Others) also. The end result
is that the substantive right of the petitioner was taken away on account
of some procedural lapse. If the petitioner has not produced the
Community certificate, she would not have been permitted to appear for
oral test. If it is stated that the petitioner did not produce the Community
Certificate as alleged, the lapse is on the part of the officials of the
respondents permitting her to appear in the oral test.
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W.P.No.30375 of 2012
7. In the case of The Secretary, Tamil Nadu Public Service
Commission Vs. M.Chitra, reported in 2010 2 MLJ 146, the Division
Bench of this Court has held thus:
“..........
7. There can be no controversy that the
instructions to candidates and the brochure bind the
candidates and the Service Commission, according to
which, the candidates are bound to produce all the
necessary documents/certificates along with the
application. In general, the application shall be rejected
for non- production of such certificates/documents. But,
in our considered opinion, an exception can be carved out
to the same. At this juncture, it would be worthwhile to
clarify that all certificates, which are required to be
produced along with application, cannot be treated
equally. There are some certificates, like certificates
relating to the basic qualification etc., which are
essential, without which the applications cannot be
entertained at all. On the other hand, there are certain
other certificates, like Community Certificate,
certificates relating to special consideration, like sports
certificate, NCC, NSS Certificates, etc., which are not
essential for entertaining the application of the
candidates. So, there can be no controversy that non-
production of the former kind of certificates within the
cut off date, shall be a ground to reject the application
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W.P.No.30375 of 2012
summarily, as mentioned in the instructions to the
candidates and information brochure, because, they
relate to the essential qualifications for making
application. To put it otherwise, unless the Service
Commission is satisfied about the eligibility criteria based
on the said certificates, it cannot entertain the
applications, and therefore, the applications in such an
event are to be necessarily rejected.
8. Insofar as the later kind of certificates are
concerned, for entertaining the application, these
certificates, which relate only to special qualifications or
consideration, are not that much material. Even in the
absence of these certificates, the applications are to be
entertained and when the question of considering the
special qualifications or status arises, it would be suffice,
if the certificates are made available to the Commission.
For example, if a candidate claims that he/she is entitled
for being considered under the quota reserved for
Schedule Tribe Community and if the required Community
Certificate is not produced, his/her application cannot be
rejected, but instead he/she has to be treated under the
open quota. For any reason, if such a Community
Certificate is produced before the date of finalization of
the provisional selection list based on the cut off marks
secured in the written examination, in our opinion, the
same would be suffice.”
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8. In Charles K.Skaria Vs Dr.C. Mathes reported in AIR 1980 SC 1230
= 1980 2 SCC 752 , the Hon'ble Supreme Court has held thus:
“..........
20. There is nothing unreasonable nor
arbitrary in adding 10 marks for holders of a diploma. But
to earn this extra 10 marks, the diploma must be obtained
at least on or before the last date for application, not
later. Proof of having obtained a diploma is different from
the factum of having got it. Has the candidate, in fact,
secured a diploma before the final date of application for
admission to the degree course ? That is the primary
question. It is prudent to produce evidence of the diploma
along with the application, but that is secondary.
Relaxation of the date on the first is illegal, not so on the
second. Academic excellence, through a diploma for which
extra mark is granted, cannot be denuded because proof is
produced only later, yet before the date of actual
selection. The emphasis is on the diploma, the proof
thereof subserves the factum of possession of the diploma
and is not an independent factor. ”
9. In Dolly Chhanda Vs. Chairman Jee and others, reported in
AIR 2004 SC 5043, the Full Bench of Hon'ble Supreme Court has held
thus:
“.....
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W.P.No.30375 of 2012
7. The general rule is that while applying for
any course of study or a post, a person must possess the
eligibility qualification on the last date fixed for such
purpose either in the admission brochure or in application
form, as the case may be, unless there is an express
provision to the contrary. There can be no relaxation in
this regard i.e. in the matter of holding the requisite
eligibility qualification by the date fixed. This has to be
established by producing the necessary certificates,
degrees or marksheets. Similarly, in order to avail of the
benefit of reservation or weightage etc. necessary
certificates have to be produced. These are documents in
the nature of proof of holding of particular qualification
or percentage of marks secured or entitlement for benefit
of reservation. Depending upon the facts of a case, there
can be some relaxation in the matter of submission of
proof and it will not be proper to apply any rigid principle
as it pertains in the domain of procedure. Every infraction
of the rule relating to submission of proof need not
necessarily result in rejection of candidature.”
wherein following the judgment of Charles K.Skaria Vs Dr.C. Mathew, it
is held as follows:
“ 8. This principle was explained and applied in
Charles K. Skaria & Ors. v. Dr. C. Mathew & Ors. 1980 (2)
SCC 752. The controversy here related to admission to a
post graduate course in medicine. The relevant rule
provided for addition of 10% marks if a candidate
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W.P.No.30375 of 2012
possessed a diploma in the relevant subject or sub-
specialty and this benefit could be given only if the
candidate's success in the diploma course was brought to
the knowledge of the Selection Committee before
completion of selection in an authentic or acceptable
manner. The Prospectus provided that the attested copies
of statement of marks and other documents should be
attached with every application. Three such candidates
were given admission who had not attached the certificate
of having passed the diploma along with their
applications. Their admission to post graduate course was
set aside by the High Court on the ground that their
applications, wherein they claimed the benefit of
diploma, were liable to be rejected as the requisite
certificates had not been attached. This Court speaking
through Krishna Iyer, J. reversed the judgment of the High
Court and held that the admission to the candidates had
rightly been given as they had in fact passed the diploma
before the date fixed. The relevant parts of paras 20 and
24 of the judgment, where this principle was highlighted
are being reproduced below :
"20. There is nothing unreasonable or arbitrary in
adding 10 marks for holders of a diploma. But to earn
these extra 10 marks, the diploma must be obtained at
least on or before the last date for application, not later.
Proof of having obtained a diploma is different from the
factum of having got it. Has the candidate, in fact,
secured a diploma before the final date of application for
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W.P.No.30375 of 2012
admission to the degree course ? That is the primary
question. It is prudent to produce evidence of the diploma
along with the application, but that is secondary.
Relaxation of the date on the first is illegal, not so on the
second. Academic excellence, through a diploma for which
extra mark is granted, cannot be denuded because proof is
produced only later, yet before the date of actual
selection. The emphasis is on the diploma; the proof
thereof subserves the factum of possession of the diploma
and is not an independent factor. ........
Mode of proof is geared to the goal of the
qualification in question. It is subversive of sound
interpretation and realistic decoding of the prescription to
telescope the two and make both mandatory in point of
time. What is essential is the possession of a diploma
before the given date; what is ancillary is the safe mode
of proof of the qualification. To confuse between a fact
and its proof is blurred perspicacity. To make mandatory
the date of acquiring the additional qualification before
the last date for application makes sense. But if it is
unshakeably shown that the qualification has been
acquired before the relevant date, as is the case here, to
invalidate this merit factor because proof, though
indubitable, was adduced a few days later but before the
selection or in a manner not mentioned in the prospectus,
but still above-board, is to make procedure not the
handmaid but the mistress and form not as subservient to
substance but as superior to the essence.
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W.P.No.30375 of 2012
..........
24. It is notorious that this formalistic, ritualistic,
approach is unrealistic and is unwittingly traumatic,
unjust and subversive of the purpose of the exercise. This
way of viewing problems dehumanizes the administrative,
judicial and even legislative processes in the wider
perspective of law for man and not man for law. Much of
hardship and harassment in administration flows from
over-emphasis on the external rather than the essential.
We think the government and the selection committee
rightly treated as directory (not mandatory) the mode of
proving the holding of diplomas and as mandatory the
actual possession of the diploma. In actual life, we know
how exasperatingly dilatory it is to get copies of degrees,
decrees and deeds, not to speak of other authenticated
documents like mark-lists from universities, why, even bail
orders from courts and government orders from public
offices.........."
9. The appellant undoubtedly belonged to reserved
MI category. She comes from a very humble background,
her father was only a Naik in the armed forces. He may
not have noticed the mistake which had been committed
by the Zilla Sainik Board while issuing the first certificate
dated 29.6.2003. But it does not mean that the appellant
should be denied her due when she produced a correct
certificate at the stage of second counselling. Those who
secured rank lower than the appellant have already been
admitted. The view taken by the authorities in denying
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admission to the appellant is wholly unjust and illegal.”
10. In yet another judgment I Bench of this Court in the case of
V.Premanand vs. The State of Tamil Nadu and others, reported in AIR
1995 Mad 316, it has observed as under:
“...........
5.................The procedure is
intended to facilitate enforcement of substantive right
and not to defeat the substantive right. Procedure is hand-
maid of justice and not to defeat justice. Therefore, the
Selection Committee acted arbitrarily when it rejected
the application, even though it had before it the
certificate produced by the petitioner to the effect that
he satisfied the category of children born of inter-caste
marriage between S.C./S.T. and Forward Community. As
long as the application was filed in time and the applicant
was able to satisfy the requirement of production of
certificate from the appropriate authority, before his
application was considered for selection, it was not at all
open to the Selection Committee to refuse to consider the
application only on the ground that such a certificate had
not been produced along with the application.”
11. The judgment of this Court in Dr.A.Rajapandian vs. State of
Tamil Nadu and the Deputy Secretary, Tamil Nadu Public Service
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W.P.No.30375 of 2012
Commission, reported in 2007 1 MLJ 820, the Division Bench of this
Court following the judgment of V.Premanand has observed as under:
“......
21. We are of the view that in the above
backdrop of the case, no such contingency arose before the
earlier Division Bench and hence, reliance placed upon the
same by the counsel for TNPSC has relevance. It is seen
from the said decision, neither in the summing up of
submissions of various counsels made before the earlier
Division Bench as noted in paragraph 9 of the said decision
(cited supra) nor such an issue was framed by the earlier
Division Bench found in paragraph 16 and such an issue
never arose for its consideration.
22. In this context, it is significant to note an
observation made by a Division Bench of this Court vide its
decision reported in 1995 (II) M.L.J. 325 (V.Premanand vs.
The State of Tamil Nadu). The Bench held in paragraph 5
of the judgment as follows:
"It must be pointed out that Clause 13.5 only
prescribed the procedure in order to eliminate persons
who do not belong to that category, to take undue
advantage. As long as it is not in dispute that the
petitioner belongs to that category of children born of
intercaste marriage between S.C. / S.T. and Forward
Community and in addition to this, he was able to produce
the certificate before the application was scrutinised for
admission, rejection of such application amounted to
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W.P.No.30375 of 2012
giving greater value to the procedure than to the
substantive right. The procedure is intended to facilitate
enforcement of substantive right and not to defeat the
substantive right. Procedure is hand-maid of justice and
not to defeat justice."
(Emphasis supplied) The above ruling shows that the right
to selection is determined by the fact that the candidate
belonged to that category and not by the certificate,
which was only a piece of evidence.”
12. From the conspectus of the above decisions, it is categorically
understood that non production of Community certificate cannot take
away the substantive right of appointment of a candidate. In the instant
case, the petitioner had submitted her Community certificate in proof that
she belongs to Backward Class community along with the application.
The applicant successfully obtained 244.50 marks in the written
examination and 30 out of 40 in the oral test. She was permitted to
participate in the oral test only after the certificate verification conducted
by the respondent. It is not the case of the respondent that she does not
belong to Backward Class and she did not produce the Community
certificate on the date of certificate verification or that she was permitted
without production of any certificate that she belong to Backward Class
community. She appeared in the oral test on 28.06.2012. Admittedly, the
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W.P.No.30375 of 2012
counselling was held on 16.10.2012. Her ranking was 770 in the merit
list. For the marks secured, it is not in dispute that the petitioner would
certainly be entitled to selection to a post in any of the post and in any
categories viz., Open category, Backward Class category, Backward
Class (woman) category etc.,. After a period of four months form the date
of certificate verification, the respondent has prevented the petitioner from
exercising her choice of posting under the pretext that she did not shadow
the box with respect to “Backward Class” category in the OMR sheet.
The reason stated by the respondent is flimsy and hyper technical and
definitely not actuated by malafides. It discloses absolutely non-
application of mind, reckless attitude, unwillingness and refusal to
exercise the discretion lawfully conferred on them to set right the minor
anomalies. The conduct of the respondent is absolutely arbitrary and it
appears it is tainted with extraneous consideration.
13. As held by the judgment of the Hon'ble Supreme Court it is
notorious that this formalistic, ritualistic, approach is unrealistic and is
unwittingly traumatic, unjust and subversive of the purpose of the
exercise. The purpose of conducting the examinations by Tamil Nadu
Public Service is to select meritorious candidates. Admittedly, the
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W.P.No.30375 of 2012
petitioner is one of the meritorious candidates and she deserves selection
for appointment to any of the post of Combined Subordinate Services on
her own merits and as a matter of right. But it was denied by the
respondent on the ground of some minor procedural lapse which is
attributable to them also. It is not the fault of the candidate but all the
officials of the respondent in not verifying the defect even before
permitting her for written examination. Had they have taken due care, the
petitioner would have clarified her communal status. At the risk of
repetition, it is reiterated that it is not the case of the respondent that the
petitioner does not belong to Backward Class community but it is their
case that she has not produced the community certificate along with the
application. If she had not produced the Community certificate during
certificate verification she would not have been permitted for oral test.
Therefore, as held by the Hon'ble Supreme Court in Dolly Chand's case,
rejecting of employment for non production of the Community certificate
is illegal and unjust.
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14. The birth of a person in a particular community cannot be
changed by production or non-production of a certificate. In the instant
case, the petitioner is a Backward Class candidate and that cannot be
changed by non production of the certificate. Therefore, the substantive
fact remains that she belong to Backward Class community and the
procedure in only the hand maid of law and it is intended to facilitate
enforcement of substantive right and not to defeat the substantive right
and thereby not to defeat justice. Therefore, the petitioner who is a
meritorious candidate who has secured 770 th rank and ensured of
appointment even in the open category should not have been deprived of
appointment on the so called procedural lapse.
15. The Division Bench of this Court in Chitra's case has held that
even the Community certificate is not produced, his or her application
cannot be rejected but instead can be treated under the open quota and
thus she is entitled to appointment. The hypertechnical stand taken by the
respondent is highly arbitrary and shows the unhumanistic, irrational
approach of the respondent. Payment of fee is always a curable defect.
Fee / money can be collected from the candidates at any point of time
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before selection and even after selection. Non-payment of money or
availing of a concession under a particular category can not be a ground
for testing the merit and ability of a person or to take a substantive right
of a person to complete and get selected.
16. Therefore, the non selection of petitioner and refusal to give
appointment to the petitioner is highly arbitrary, illegal, unjust and
inhumane. In such circumstances, this Court is of the considered opinion
that the petitioner is rightfully entitled to get appointment and issues a
positive direction to the respondent to give her appointment on the basis
of Combined Subordinate Services Examination-I conducted by the Tamil
Nadu Public Service Commission in the year 2012. The respondent is
further directed to address the Government to provide her an appointment
in the suitable post as become her rank and talent within a period of three
months from the date of receipt of a copy of this order.
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W.P.No.30375 of 2012
The writ petition is allowed with the above observations. No costs.
30.09.2021
Internet : Yes
Kpr/asi
To
The Secretary
Tamil Nadu Public Service Commission
Fraser Bridge Road
V.O.C Nagar
Chennai-600 003.
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W.P.No.30375 of 2012
M.GOVINDARAJ, J.,
kpr/asi
W.P.No.30375 of 2012
30.09.2021
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